SUMMARY

On August 7, 2023, Colorado’s Protecting Opportunities and Workers’ Rights (POWR) Act takes effect, significantly shifting the power balance toward employees. Among other things, the Act:

• lowers the threshold for workplace harassment claims;
• limits an employer’s affirmative defense to claims of harassment by supervisors;
• restricts the use of nondisclosure provisions in employment-related agreements; and
• establishes new record-keeping requirements.

Broadens the Definition of Harassment

The Act redefines harassment as:

• unwelcome conduct or communication;
• directed at an individual because of their membership, or perceived membership, in a protected class; and
• the conduct or communication is subjectively offensive and is objectively offensive to a reasonable individual in the same protected class.

Most notably, the Act eliminates the long-standing requirement that the conduct be severe or pervasive. The Act further dictates that neither the nature of the work nor the frequency of past harassment is relevant to whether conduct creates an offensive working environment. Even a single, non-severe incident can now constitute unlawful harassment under “the totality of the circumstances.” Factors to consider include the frequency, duration and location of the conduct; the number of individuals involved; the nature of the conduct; whether a “power differential” exists between the individuals involved; and whether the conduct is threatening, involves epithets or slurs or...

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